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The sudden and unexpected death early Saturday of U.S. Supreme Court Justice Antonin Scalia has rocked the nation’s capital and saddened a great many Americans, no small number of which we’ve heard from in news accounts over the past three days.
Scalia has been praised for his brilliant legal mind and scholarship and his long service to our country. I support that praise as I would for any jurist who had spent three decades doing the tough work of our nation’s highest court.
But that’s where the lovefest stops. Having waited three days to post on Scalia’s passage, I’ll continue to show some restraint here, but not much. It’s a blessed thing for a great many that Scalia is off our high court, though even in death, he continues to bring harm to many who may be silently thankful for his departure.
Our nation is home to an estimated 16 million lesbian, gay, bisexual and transgender individuals, an estimate based on a conservative 5 percent of the current U.S. population of 319 million. Scalia targeted, marginalized and slurred our community so often and so routinely, his hatred of LGBT Americans became something of a caricature.
But for us, it was no joke.
It’s important to understand that his bigotry was not only deeply felt, but had the ability to dramatically impact those who were its target.
Had Scalia had his way, for instance, laws criminalizing consensual homosexual sex in the privacy of the homes of consenting adults would still be in force in many states. See his ugly dissent in Lawrence v. Texas for proof, where he compares homosexuality to prostitution, bestiality, heroin use and incest.
Scalia didn’t consider LGBT Americans worthy of legal recognition or protection.
Ironically, it was that Lawrence v. Texas case, in which a bare five-justice majority overturned the hellish Bowers v. Hardwick decision of 1986, that opened the doors for the rush of pro-gay court decisions and legislation we’ve seen over the past dozen years.
And Scalia fought every bit of that every inch of the way, up to and including last summer’s landmark Supreme Court decision, Obergfell v. Hodges, that legalized marriage equality nationwide and affirmed the constitutionality of Hawaii’s marriage law passed a year and a half earlier.
To Scalia, such progress not only represented bad law, he didn’t consider LGBT Americans worthy of legal recognition or protection. He thought it entirely appropriate that Americans and their governments be allowed to discriminate against gays and lesbians, that the “moral opprobrium that has traditionally attached to homosexual conduct,” as he called it, was just and right. Expressing animus toward LGBT individuals and conduct was perfectly fair, to Scalia.
Given that, he saw no problem in denigrating our relationships and lifetime commitments, describing them as no different than roommate situations. He thought laws banning employment discrimination based on sexual orientation or gender identity amounted to undeserved “special rights.”
And he argued that “deviate sexual intercourse with someone of the same sex” deserved no protection under the law, that states were well within their rights to make such relations illegal and to arrest and prosecute those engaging in such sexual activity.
Rather than mellowing with age, Scalia and his anti-gay bigotry seemed only to sharpen over the years. The barbs were on full display one final time just three months ago in a speaking appearance at Georgetown University, where he pushed back hard against the idea of gay rights progress, saying it had no basis in the Constitution.
“What minorities deserve protection? What? It’s up to me to identify deserving minorities,” he asked, rhetorically. “What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.”
As I’ve listened to public figures praise Scalia these past few days, it’s struck me time and again that they had no skin in this game. Even leaders who have done right by the LGBT community — such as Justice Ruth Bader Ginsburg, whose surprising friendship with Scalia was legendary — never felt the acid sting or brutal personal impact of his opinions when he was writing for the majority on gay issues or lashing out at us in a minority dissent.
As a gay man whose adult life spans decisions ranging from Bowers to last summer’s Obergfell landmark, I have. I know the corrosive impact Scalia had on my community and the solace he provided to those in the country who appreciated him as the court’s harshest and most reliable anti-gay voice.
I’ve written about these issues for many years and have been politically active in the LGBT community here and elsewhere on matters of fairness and equality. In fact, my need to be active on such issues led me away from my journalism career for a time: The damage that Scalia and others were doing to LGBT Americans as we reeled from the AIDS epidemic meant that our community needed me more as an activist than a journalist, along with all the many others who interrupted careers of another kind to look after our people’s interests.
As I’ve listened to public figures praise Scalia these past few days, it’s struck me time and again that they had no skin in this game.
Today, as a legally married gay dad with two sons, I wonder how younger LGBT individuals are experiencing the coverage of Scalia’s death. My battle wounds have long since scarred over, but for many younger folks who have grown up in an age of gay/straight alliances, Ellen and marriage equality, I imagine it’s quite jarring to hear such a vitriolic, homophobic judge lionized so endlessly as a great man and insightful thinker.
Would Scalia have been eulogized so sweetly had women, African-Americans or the disabled been the relentlessly demeaned target of his jurisprudence? Would public figures think twice about saying such flattering and uncritical things about his tenure on the high court? What does it mean that so many in positions of respect and authority can offer unfettered praise of a judge who was so unabashedly hateful toward gays and lesbians?
One of my social media friends, a national LGBT leader, encouraged all of his followers over the past few days to rise to the occasion and set an example by offering Scalia in death the respect he denied our community in life.
Fair enough. I have no desire to speak ill of the dead or to go beyond the simple recitation of truths above in describing why Scalia acted as he did or otherwise to call his character into question.
But I will make two final points: It’s a good thing for America that he is no longer a justice of the U.S. Supreme Court. And I look forward to learning about the legal leader who President Obama will soon appoint to replace him — a jurist who hopefully will erase the remnants of Scalia’s toxic, anti-LGBT legacy, opinion by venomous opinion.